A MODEL ACT TO IMPROVE THE PRACTICE OF CRIMINAL PROSECUTIONS

Preventing Wrongful Convictions by Legislating Prosecutorial Accountability

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Angela Davis, professor at American University’s Washington College of Law and former head of the D.C. public defender’s office, was quoted in the Washington Post last October as saying: Prosecutors “are the most powerful officials in our criminal justice system. They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.”

Such far-reaching discretion inevitably leads to abuse. Last year we discussed these abuses in several posts. Prosecutorial misconduct in any case is shameful, but it is unforgiveable in cases where rogue prosecutors send innocent people to prison. The New York-based Innocence Project reports that “the cases of wrongful convictions uncovered by DNA testing (289 to date) are filled with evidence of negligence, fraud or misconduct by prosecutors and police departments.” This problem has become so epidemic that even The Police Chief, a leading law enforcement magazine, in its February 2012 edition, called for a policy of termination when police lie in criminal cases.

The nature of this epidemic of government misconduct, especially by rogue prosecutors, in the prosecution of criminal cases can be measured by credible studies indicating how many innocent people are wrongfully convicted in the United States each year. For example, Seaton Hall University School of Law Professor D. Michael Risinger in 2007 published the results of a study, Innocents Convicted: An Empirically Justified Wrong Conviction Rate, in the Journal of Criminal Law and Criminology (Vol. 97, No. 3) which said that between 3.3 and 5 percent of all capital rape-murder convictions in this country involve innocent defendants. Going even lower than Professor Risinger’s 3.3 minimum percentage, Radley Balko, senior editor of Reason Magazine, utilized the nation’s prison population in this country in 2008 to conclude there were at least 46,000 innocent people incarcerated in the nation’s prison system.

Last December we pointed to a December 12, 2011 article that appeared on the website of Mother Jones, written by Beth Schwartzapfel and Hannah Levintova titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Project and the Center on Wrongful Convictions, estimated there have been as many as 850 wrongful convictions in this country since the late 1980s. Based on these exonerations, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.

“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”

Writing in a 2008 paper titled Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Barrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can accurately be measured because they have trial transcripts. Gross’ 2008 paper suggests that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 innocent individuals in the nation’s general prison population between 1989 and 2003.

Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which appeared in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that, also not surprisingly, 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and former presidential candidate Rick Perry. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to most fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.

Another recent, and revealing, research in this area was conducted by the Northern California Innocence Project at the Santa Clara University School of law who released a 2009 report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The Northern California Innocence Project (“NCIP”) examined more than 4,000 state and federal appellate rulings in criminal cases in California between 1997 and 2009 which involved alleged prosecutorial misconduct. In 707 of the cases, the courts explicitly found prosecutorial misconduct while in approximately 3000 cases no prosecutorial misconduct was found; and in another 282 cases the courts did not decide whether the prosecutors actually engaged in misconduct, finding the trials they were involved in were fair. In only 159 of the 707 cases did the courts find actual harm, resulting in a new trial, a new sentencing hearing, a mistrial or certain evidence being barred from use at trial. In the remaining 548 cases the courts upheld the convictions, finding the misconduct did not deprive the defendants of a fair trial.

The NCIP misconduct study clearly shows there is little, if any, professional accountability attached to rogue prosecutors. The study disturbingly shows “that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation

to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.

“Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.

“Further, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67 prosecutors—11.2 percent—committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.”

“Prosecutorial misconduct is an important issue for us as a society,” the NCIP said, “regardless of the guilt or innocence of the criminal defendants involved in the individual cases. Prosecutorial misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars in protracted litigation. It undermines our trust in the reliability of the justice system and subverts the notion that we are a fair society.

“At its worst, the guilty go free and the innocent are convicted. An especially stark example is the death penalty prosecution of Mark Sodersten, a man who spent 22 years behind bars convicted of a murder that the appellate court said he most probably did not commit.

“In 2007, a California Court of Appeal found that the deputy district attorney who prosecuted Sodersten, Phillip Crane, had improperly withheld from the defense audiotapes of his interview with a key witness. After reviewing the tapes, the justices found they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction, emphasizing: ‘This case raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.’

“For Sodersten, the ruling in his case came too late: he had died in prison six months earlier.”

The same thing happened with Timothy Cole here in Texas—he died in prison before his innocence could be established (here). The Cole/Willingham cases are strong indicators that innocent people have been put to death in Texas, and far too many state prosecutors excuse this travesty as necessary “collateral damage” in the “war on crime.” Except for Dallas County District Attorney Craig Watkins, who, in 2008, told the Dallas Morning News that “something should be done [about prosecutorial misconduct]. If the harm is a great harm, yes, it should be criminalized.”

Phillip Crane, and all the other prosecutors (like those in Louisiana responsible for sending John Thompson to Louisiana’s death row for 18 years) who deliberately withhold evidence of innocence in criminal cases, should be prosecuted in a court of law as common criminals. There is no excuse for withholding exculpatory evidence in any case, much less in a case where an innocent man has indisputably been wrongfully charged with a crime without any probable cause.

So what happened to Phillip Crane? Absolutely immune from civil liability and granted quasi-official immunity from the California State Bar, Crane was free to seek, and win, the District Attorney’s position in Tulare County in 1992, according to NCIP. All this despite the fact, according to the California appellate court, he undermined “the integrity and fairness that are the cornerstone of our criminal justice system” in the Sodersten case. It is prosecutors like Phillip Crane who have made misconduct an accepted trial tactic.

Sixteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000 innocent people are wrongfully convicted each year in this country. This number supports Mother Jones’ conclusion that there are currently 20,000 innocent people in the nation’s prison system. While there is no way to precisely determine how many of these cases of innocence involve prosecutorial misconduct, the NCIP study offers some indication: the 707 cases of prosecutorial misconduct it identified represent a 17 percent prosecutorial misconduct rate in the criminal cases reviewed. And by applying this percentage to the number of innocent people already in prison and the number being sent there each year, you realize the magnitude of the potential problem of prosecutorial misconduct in our legal system.

What Kind of Legislation Should Be Implemented?

As we pointed out in a September 2010 post, the Texas Legislature in 2009 created the Timothy Cole Advisory Panel on Wrongful Convictions (“Panel”) and charged it with the responsibility of providing assistance and advice to the Task Force on Indigent Defense (“Task Force”) which has been charged with the responsibility of conducting a study designed to cover a broad array of issues relating to wrongful convictions. The study included the following areas:

  • The causes of wrongful convictions;
  • The procedures and programs that may be implemented to prevent future wrongful convictions;
  • The effects of state law on wrongful convictions, as determined based on state statues regarding eyewitness identification procedures, the recording of custodial interrogations, post-conviction DNA testing, and writs of habeas corpus based on relevant scientific evidence; and
  • Whether the creation of an innocence commission to investigate wrongful convictions would be appropriate.

On August 26, 2010 the Panel issued its “report” putting forth a package of recommendations which, if implemented, would begin the path toward improving the quality and integrity of the Texas criminal justice system.

It is now time for the Texas Legislature to take real steps towards addressing the institutional problems inherent in our criminal justice system by drafting legislation, based in part on the Timothy Cole report, for dealing with the legal crisis of prosecutorial misconduct. We also suggest that the legislature discuss something similar to the Model Act advocated by the Hall Institute of Public Policy – NJ. Dr. Michael D. Riccards is Executive Director of the Hall Institute of Public Policy. In a 2009 post about prosecutorial misconduct on the Institute’s website, Dr. Riccards, a former college president and a presidential scholar who has authored 15 books, discussed the “Act to Improve The Practice of Criminal Prosecution,” which includes an interesting discussion on problem areas and practical steps that can be taken to establish some prosecutorial accountability.

We should also see legislation that criminalizes intentional prosecutorial misconduct, such as intentional Brady violations, for those prosecutors who intentionally hide, alter or mischaracterize evidence used in criminal prosecutions.

In so many previous posts, we have strongly endorsed the firm principle that rogue prosecutors should be held accountable for their misconduct; that, as District Attorney Craig Watkins suggested, when their misconduct causes harm, it should be criminalized. The Cole Report and the Hall Act provide realistic starting points for a discussion about the proper mechanism for beginning accountability for prosecutorial misconduct. We would hope that concerned legislators, supported by criminal defense attorney associations, would present legislation incorporating these ideas for consideration by the Legislature in 2013. We would also hope that legislation criminalizing intentional misconduct would be presented and seriously considered. Given the high number of instances of wrongful convictions and continual public examples of prosecutorial misconduct, it is high time this legislation be seriously considered. The very integrity of our system of criminal justice depends upon it…

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

The entire proposed Model Act, with changes for Texas, put forth by the Hall Institute follows:

Section I. Purpose

The purpose of this Act is to ensure the proper use of prosecutorial discretion and provide for appropriate sanctions for prosecutors who abuse their discretionary powers. This Act should be interpreted consistent with these objectives.

Section II. Scope

This Act applies to all prosecutors practicing in [Texas].

Section III. Definitions

As used in this Act, these words and phrases can be defined in the following way:

A. ”In-custody informant” means a person whose testimony is based upon statements made by the defendant while both the defendant and the informant are held by the state.

B. ”Accomplice informant” means a person who will or may testify or provide information for the prosecution who is alleged to have participated in the criminal offense(s) that the subject of the trial and investigation.

C. “Informant refers to both in-custody informants and accomplice informants, as defined in subsection A and B in this section.

D. “Consideration” means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, benefit, immunity, financial assistance, reward, or amelioration of current or future conditions of incarceration in return for, and in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.

Section IV. Prosecutorial Review Board, creation

A. A Prosecutorial Review Board (hereinafter called “The Board”) is created.

B. The Board shall consist of X members, appointed by the Governor.

C. The Board shall consist of at least X people who have experience as a prosecutor, at least X attorneys who have experience defending criminal defendants, and at least X people who are not attorneys.

D. The Board shall meet at least once a month. X members shall constitute a quorum. The Board may pass rules governing its internal structure and practices, as appropriate.

Section V. Prosecutorial Review Board, responsibilities and duties

A. The Board shall conduct random, unannounced audits of cases, as appropriate and feasible. The Board shall have full access to the prosecution’s files, and shall investigate the chosen case(s) to search for prosecutorial misconduct. The Board shall have the power to subpoena witnesses to testify before the Board. The Board shall issue a report on the case to the prosecutor’s office that is being investigated upon the investigation’s completion, describing any problems with the investigation, and suggesting any changes that are needed. These reports shall be public documents. If any misconduct is discovered, the Board may remedy the misconduct as described in subsection D of this section.

B. The Board shall consider complaints filed by judges, pursuant to Section IX of this Act.

C. The Board shall hear complaints from citizens alleging prosecutorial misconduct. Citizens may file complaints with the Board for the following offenses:

  • Seeking an indictment of any person despite an absence of probable cause,
  • Failing to promptly reveal information that would exonerate a person under indictment,
  • Intentionally or knowingly misleading the court as to the guilt of any person(s),
  • Intentionally or knowingly misstating evidence,
  • Intentionally or knowingly altering evidence,
  • Attempting to unduly influence a witness’ testimony,
  • Acting to frustrate a defendant’s right to discovery,
  • Leaking or otherwise improperly disseminating information to any person during an investigation, or
  • Engaging in conduct that discredits the department.

D. The Board shall act as it deems appropriate to remedy any found misconduct. Their actions may include, but are not limited to, the following sanctions:

  • Issuing an admonition,
  • Requiring additional training or education,
  • A monetary fine,
  • A suspension from practicing as a prosecutor,
  • Termination, and
  • Disbarment.

E. The Board shall ensure that all prosecutors’ offices within [Texas] develop a manual stating their official policies and procedures on the proper use of prosecutorial discretion in criminal cases.

  • The Board shall take steps necessary to ensure that prosecutors develop a manual within one year of the effective date of this Act.
  • Policies and procedures manuals developed by prosecution offices are public documents. Each prosecutor’s office shall make its policies and procedures manual available at the office for public inspection. Each prosecutorial office shall furnish each public and archival library within its jurisdiction with at least one reference copy and at least one circulation copy of its policies and procedures manual. Where possible, the Board shall make a reasonable effort to ensure that all policies and procedures manual of each prosecutorial office in [Texas] are publicly available on the internet. Policies and procedures manuals shall also be made available at any other location that the Board deems appropriate for the public dissemination of these manuals.

F. The Board shall develop standards for and ensure the implementation of initial and continuing training and education programs focusing on the unique ethical obligations of prosecutors as discussed by the American Bar Association in ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed.

  • The Board shall ensure that prosecutorial offices demonstrate that all incoming prosecutors successfully complete training that meets the standards set forth by the Board under this subsection.
  • The Board shall ensure that all prosecutorial offices demonstrate that all attorneys on staff successfully complete continuing training at regular interval set by the board and not to exceed once every five years that meets the standards set forth by the Board under this subsection.

Section VI: Discovery Obligations

A. Not later than twenty (20) days after the filing of charges, and independent of motion or request. The prosecution must disclose any material or information within the prosecutor’s possession or control that could be, should be, or is known to negate guilt of the defendant as to the offense charged, or that would tend to mitigate or aggravate the punishment of the defendant.

B. Not later than twenty (20) days after the filing of charges, and independent of motion or request, and regardless of whether the prosecution determines material to be material or immaterial to either guilt or punishment, relevant, irrelevant, inculpatory, or exculpatory, the prosecution shall disclose the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term “file” shall be understood to include, but shall, not be understood as being limited to, the following:

  • All written and all oral statements made by the defendant or any co-defendant, and the names and addresses of any witnesses to such statements. This shall be disclosed regardless of when the statement was made, and any oral statement must be memorialized in writing.
  • The names and addresses of all persons known to the prosecution to have information concerning the offense charged, together with all written statements of any such person. The prosecution shall identify the persons it intends to call as witnesses at trial, even if the prosecution intends to call the witness as a rebuttal or character witness.

The trial judge may, upon clear and convincing showing of cause by the prosecution that disclosure of a witness’ name or address would present a threat to the physical or bodily safety of a witness, allow the prosecution to keep secret that witness’ name or address.

  • All written and all oral statements made by witnesses.
  • The relationship, if any, between the prosecution and any witness it intends to call at trial, including the nature and circumstances of any agreement, understanding, or representation between the prosecution and the witness that constitutes an inducement for the cooperation or testimony of the witness. Specifically, for informants, the term “file” encompasses:
  • A written statement setting out any and all consideration promised to, received by, or to be received by the informant. The requirement applies even if the prosecution is not the source of the consideration.
  • The complete criminal history of the informant.
  • The names and addresses of any and all persons with information concerning the defendant’s alleged statements, including but not limited to: law enforcement and/or prison officers to whom the informant related the alleged statements, other persons named or included in the alleged statement, and other persons who were witness and who can be reasonably expected to have been witness to the alleged statements.
  • Any prior cases in which the informant testified and any consideration promised to or received by the informant, provided such information may be obtained by reasonable inquiry.
  • Any and all statements by the informant concerning the offense charged.
  • Any other information that tends to undermine the informant’s credibility.
  • This section does not alter other disclosure to discovery obligations imposed by state or federal law.
  • Any materials that the prosecution must disclose under this section are admissible to impeach the credibility of the informant if such informant testifies at trial.
  • The notes of the investigating officer(s).
  • Results of tests and examinations, or any other matter of evidence obtained during the investigation of the offense alleged to have been committed by the defendant, including, but not limited to:
  • Any reports or written statements of experts made in connection with the case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and without regard to whether the prosecution intends to call parties conducting the reports, tests, examinations, experiments, comparison, or statements to testify. Tests, reports, and case notes prepared by state agencies or laboratories qualify as reports or written statements of experts under this section. With respect to each expert whom the prosecution intends to call as a witness at trial, the prosecutor should also furnish to the defense a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion.
  • Any tangible objects, including books, papers, documents, photographs, buildings, places, or any other objects, that pertain to the case or that were obtained for or belong to the defendant. The prosecution should also identify which of these tangible objects it intends to offer as evidence at trial.
  • Any materials, documents, or statements relating to any searches or seizures conducted in connection with the investigation of the offense charged or relating to any material discoverable under this Act.
  • Any record of prior criminal convictions, pending charges, or probationary status of the defendant or any co-defendant, and insofar as known to the prosecution, any record of convictions, pending charges, or probationary status that may be used to impeachment of any witness to be called by either party at trial. While the prosecution is under no duty to conduct background checks of all witnesses, if the prosecution runs a general criminal records search for defense witnesses, the prosecution must make the same search with respect to prosecution witnesses and must disclose the results to the defense.
  • Any materials, documents, or information relating to lineups, showups, and picture or voice identifications in relation to the case, and the identity of any witness to such lineup, showup, and picture or voice identification.

C. If the prosecution intends to use character, reputation, or other act of evidence, the prosecution should notify the defense of that intention and of the substance of the evidence to be used.

D. If the defendant’s conversations or premises have been subjected to electronic surveillance (including wiretapping) in connection with the investigation or prosecution of the case, the prosecution should inform the defense of that fact.

E. The prosecution shall disclose any and all contents of the files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant file not specifically listed or named above.

  • Upon request by the State, a law enforcement or prosecutorial agency shall make available to the State a complete copy of the complete files related to the investigation of the crimes committed or the prosecution of the defendant for compliance with this section.

F. At least five (5) days before trial, the State’s attorney shall certify to the Court in writing that:

  • The State’s attorney has provided the defense counsel with all discoverable material and information.
  • The State’s attorney has exercised due diligence in locating all discoverable material and information known to:
  • The State’s attorney; and
  • All individuals who participated in the investigation or evaluation of the offense for which the defendant is being tried.
  • To the best of the State’s attorney knowledge, all individuals involved in the investigation, evaluation, or prosecution of the offense being tried have exercised due diligence in locating all discoverable materials and information in their possession to the State’s attorney.
  • All individuals involved in the investigation, evaluation, or prosecution of the offense being tried acknowledge their continuing obligation to exercise due diligence in disclosing discoverable material and information as soon as the information is known to the individual.
  • The certification filed by the State’s attorney shall include a written statement from the designated lead investigator of each law enforcement agency involved in the investigation of the offense being tried that confirms that all discoverable materials and information in the possession of the law enforcement agency has been provided to the State’s attorney.

G. If the Court finds that the certification required under subsection F of this section was given in bad faith, in addition to any other remedy available to the Court, the Court shall impose a fine on the offending party, and/or the lead investigator at its discretion.

H. The prosecution has a continuing duty to disclose materials that are added to their file after the initial disclosure of materials, up to the start of the trial.

Section VII. Failure to Comply with Discovery Obligations, sanctions

If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with their discovery obligations under this Act, the Court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances, including, but not limited to, dismissal with prejudice.

Section VIII. Obligation of Sitting Judges in Cases Involving Prosecutorial Misconduct

A. An appellate judge is required to report, to the bodies referenced in subsection D of this section, the following offenses, when committed by a prosecuting attorney in a criminal case:

  • A willful misrepresentation of law or fact to a court;
  • Attempting to unduly influence a witness’ testimony;
  • Acting to frustrate a defendant’s right to discovery;
  • Leaking or otherwise improperly disseminating information to any person during an investigation;
  • Appearing in a judicial proceeding while intoxicated;
  • Engaging in willful unlawful discrimination in a judicial proceeding;
  • Willfully withholding or suppressing evidence that the prosecutor knows or should know to be exculpatory;
  • Willful presentation of perjured testimony;
  • Failure to property identify oneself in interviewing victims or witnesses; and
  • Any other egregious prosecutorial misconduct.

B. Any question of whether misconduct is egregious shall be resolved in favor of reporting.

C. If the order of contempt, modification or reversal of judgment, imposition of judicial sanctions, or imposition of a civil penalty is signed by a judge or magistrate, that judge or magistrate shall report it to the bodies referenced in subsection D of this section.

D. The judge shall report misconduct within thirty (30) days of the offense, to the following entities:

  • The state bar association,
  • The offending supervisor’s supervisor, and
  • Any prosecutorial review board in [Texas].